Virtues

About me

I am a diocesan priest in the Archdiocese of Vienna, responsible for the parishes of Zillingdorf and Eggendorf, and a teacher at the International Theological Institute, Trumau. I have set up this blog to share
both academic and personal reflections, with emphasis on our common vocation to life in Christ, to love and holiness. Please feel free to comment, ask questions, or join in discussion.

Joseph Bolin

Month: July 2014

Can a priest, with the penitent's permission, reveal to another person a sin which he knows under the seal of confession? Aquinas takes up this question in his Commentary on the Sentences of Lombard (In IV Sent., distinction 21, q. 3, a. 2 — translation of this article in the Supplement to the Summa, q. 11, a. 4).

He explains, there are two general reasons binding a priest to keep secret sins he has heard as a confessor, within confession. First, and most importantly, because in hearing a person's confession, the priest acts in behalf of God, and so knows the sins only as God's minister [or: knows the sin only as God does]. Secondly, in order to avoid scandal, that persons become unwilling or less willing to go to confession because they feel they cannot be confident that the priest will preserve the secrecy of the confession.

Aquinas goes on to say that the penitent can bring it about that what the priest previously knew only "as God" (or as God's minister), he know also "as man", and the penitent does this when he gives him permission to speak [to another person]. (quod facit dum eum licentiat ad dicendum). Consequently, if the priest then speaks to others, he does not break the seal of confession. But scandal could still be possible, if someone hears that the priest told what he heard in confession, without hearing that the penitent gave him permission to tell, and so the priest must take care to avoid scandal.

The interpretive crux of this article is, what does Aquinas means when he says that the penitent makes the priest know as man what he formerly knew as God "when he gives him permission to speak"? Commentators offer two quite different interpretations of the statement. According to one interpretation, when the penitent gives the priest permission to speak, he tells him again, now outside of confessor, the sin he wishes him to tell another person. According to the other, precisely by giving the priest permission to tell another person what the penitent told him in confession, he thereby enables the priest to know as a man what he formerly knew only as God's minister, and thereby to speak based on that knowledge outside of the sacramental context.

The principal argument in favor of the first interpretation is basically the following: Outside of confession, the priest cannot use the knowledge which he has from confession. Consequently, if the penitent tells him, "you can tell people what I told you last year in confession," the priest cannot use any knowledge of the confession to know what it is the penitent is giving him permission to tell. Even if he tells him some detail, "you can tell people what I told you in confession last year when I confessed being the one who burned that house down," the priest cannot use any other knowledge of the confession to know in more detail what the penitent was permitting him to tell.

Against this first interpretation, and in favor of the second interpretation, are these considerations: first, if the priest, even with the penitent's permission, cannot use the knowledge he has from confession, but has to reacquire it, then he can under no circumstances ever say anything about the confession, no matter how much the penitent gives him permission, and no matter how much the penitent retells outside of confession what he previously told him in confession. For on this hypothesis, if the penitent tells him "you can tell people what I told you in confession," and the penitent says "I told you X and Y", the priest would still be unable to use the knowledge he has from the confession to verify what the penitent is telling him. Thus he would only be able to say "he told me X and Y," or "he told me that he confessed X and Y," but not "he confessed X and Y". But for the priest to reveal what someone tells him outside of confession, or for a priest to say that someone told him that he confessed one thing or another, is in no way to reveal what he knew through confession. Thus the assertion that a priest, with the permission of the penitent, can reveal to another a sin that he knows under the seal of confession, would be meaningless. To be more precise, it would be only incidentally true — that which he happens to know under the seal of confession, he can reveal to another if he also knows it through another means, and the person who tells him in that other context gives him permission to pass it on.

Following up on this point, Aquinas in the immediately following article (both in the original text, the Commentary on the Sentences, and in the compiled Supplement to the Summa), asks whether a man may reveal that which he knows through confession and through some other source besides, and says that he can. According to the first interpretation of the article we are considering, it would be merely a particular case of this more general point, so it would be strange that Aquinas does not allude to this.

Finally, Aquinas certainly does not understand a priest's knowing what he heard in confession "as God" as excluding all use of that knowledge, but as excluding all use that would reveal a sin — as God covers sins that are submitted to him in penance, so must the priest, as God's minister, conceal sins submitted to him in penance. (In IV Sent. dist. 21, q. 3, a. 1, qa. 1, or supplement, q. 11, a. 1). Indeed, Aquinas opines that an abbot who learns in confession of a prior's sin that would make it disastrous for him to remain in office, he can relieve him of the office of prior on some other pretext, and thus avoid all suspicion of divulging the confession. (Note that it is now forbidden by canon law for those in authority to make any use for external governance of knowledge about sins received in confession at any time [CIC 984 § 2].)

Recently the Supreme Court of Louisana made a decision pertinent to a civil lawsuit naming Rev. Jeff Bayhi and the Catholic Diocese of Baton Rouge as defendants. According to the official statement of the diocese, the decision of the Louisiana Supreme Court "attacks the seal of confession and the attempt by the plaintiffs to have the court compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." (sic)

While the original lawsuit filed is itself under seal, the course of events implied by the published statements are as follows:

1. On July 6, 2009 the parents of a minor child filed a lawsuit alleging that Bayhi, having heard their child's confession regarding her abuse by a church member, was negligent in advising the minor regarding the alleged abuse and failed his duty to report the abuse as a mandatory reporter in compliance with the Louisana's Children Code. It also held the diocese vicariously liable for the alleged misconduct of Bayhi and for failing to properly train him regarding mandatory reporting of sexual abuse of minors.

2. The defendants made a motion in limine to prevent the plaintiffs from "mentioning, referencing and/or introducing evidence at trial of any confessions that may or may not have taken place" between plaintiffs' minor child and the priest, including testimony by the minor child herself about the confessions, on the grounds that nothing that was said in confession could lead to a mandatory duty to report; consequently, there could be no breach of the duty to report arising from anything said in confession, making any and all testimony regarding confessions, including testimony of the minor child, irrelevant to the alleged failure of duty to report.

3. This motion was denied by the court, on the grounds that the legal privilege of confidentiality in confession belongs to the one making a confession to a priest, and as such can be waived by this person. In addition, it noted an apparent inconsistency in the law, one provision of which states that clergy are excepted from being mandatory reporters for anything that is a confidential communication (603(15)(c)), and the mandating reporting "notwithstanding any claim of privileged communication." (609)

4. The decision was appealed to the First Circuit Court of Appeal, which agreed with the defendants, and thus granted the motion in limine, excluding from trial all evidence regarding confessions between the minor child and the priest. Regarding the claimed inconsistency in the law, it noted that the mandatory reporting "notwithstanding any claim of privileged communication" could not be interpreted to apply to priests as mandatory reporters, since that would make the exemption for clergy meaningless. (In addition, the appeals court found a peremptory exception of no cause of action, effectually dismissing all of the claims against Jeff Bayhi and the Church, on the grounds that he was not a mandatory reporter, that even if he were, it would be a matter of criminal law enforcement, not a civil cause, and that, finally, no standard is established by which his advice to the child could be judged negligent.)

5. This decision was appealed to the Louisana Supreme Court, which reversed the appelate court's decision; (1) it reversed the motion to exclude all evidence regarding confessions on the grounds that the legal privilege of confidentiality in confession can be claimed by the one who made a a confession to a priest, or by the priest on behalf of this person. Since the privilege belongs to the penitent, if the penitent waives the privilege, the priest cannot invoke it to protect himself; (2) it reversed the appelate court's dismissal of the case, on the grounds that the question of an alleged mandatory duty to report is here a mixed question of law and fact; two questions of fact in particular it held to be open: (a) whether the communications between the child and the priest were confessions per se, and (b) whether the priest obtained knowledge outside the confessional that would trigger his duty to report.

Some remarks:

Neither the appelate court's decision nor the supreme court's decision directly implies or supports the trial court's right to "compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." The claim by the diocese the the plaintiffs attempted to have the court compel this testimony may or may not be true, but is not implied in the statements made by the appelate court and the supreme court, which deal only with the question of whether all evidence about the confessions, including the testimony of the child, may be excluded from the case.

The question of whether there were confessions

Granting that the court were to hold the content of confession relevant, and that the legal privilege of confidentiality of the confession cannot be invoked by the priest, having been waived by the penitent, so that her testimony regarding the confession could be introduced as evidence in court, it remains a separate question whether the priest could be compelled to testify about the confessions, despite appealing to the freedom of religion together with the Church's prohibition of speaking about the contents of an individual's confession.

The facts do not seem to indicate any real reason for doubt about whether the child's communications with the priest fall within the confidentiality of confession (apparently the talks were made just before the evening Mass, in the time and place for the Sacrament of Reconciliation, and the girl herself described what she was doing as going to "confession"); still, it does seem in principle to be within the court's right to inquire as to the criteria by which the communications are held to be confession, or more precisely, within the confessional forum. (Otherwise a priest could theoretically claim that everytime someone had spoken with him, whether about finances, plans for a celebration, or anything else, it fell under the rubric of confession.)

According to the official statement of the Diocese, "Pursuant to his oath to the Church, a priest is compelled never to break that seal. Neither is a priest allowed to admit that someone went to confession to him." As pertinent to the case, the second statement is false, and indeed, the defendants argued precisely that certain testimony must be excluded because it fell under the confidentiality of confession!

A priest may not say whether someone actually confessed sins to him. But a person has to say or do certain things in the external forum in order for the context of confession to be established; for example, he has to come into the confessional, to say "Can you hear my confession, father?", or by some other means indicate his intention to present himself and his conscience in the confessional forum. Since these things by definition take place prior to confession, and thus in the external forum (or in some cases, an internal forum such as that of spiritual direction), they do not as such fall under the sacramental seal, and a priest may testify as to whether someone did or did not enter into the forum of confession, though prudence and justice demand a general confidentiality about exactly what someone says that indicated his wish to make a confession.

Indeed, in many places and for a long time, penitents would in various cases receive a certificate testifying that they had been to confession. Till today couples in Poland have to present certificates of confession in order to get married!

The official diocesan statement further maintains: "for a civil court to inquire as to whether or not a factual situation establishes the Sacrament of Confession is a clear and unfettered violation of the Establishment Clause of the Constitution of the United States."

While there may be legal nuances of which I'm not aware, it seems rather that a civil court's purporting to determine what establishes the Sacrament of Confession, or any other sacred matter, would be a infringement of the state into the religious sphere, but that it's inquiring into what establishes the Sacrament of Confession, and indeed, for purposes of civil consequence and liability, making a judgment in a particular case on the basis of principles given by a respective religious authority, is no infringement, and falls within its competence. If the state is to protect various goods connected with the exercise of religion, it has to be able to make some judgment as to what things pertain to religion. For example, many states of laws against desecration of places of worship. Now let's suppose I'm upset about spray-paint vandalism of my back-yard shed. So I take it on myself to declare it a sacred chapel, to raise the stakes for vandals… if a civil or criminal case is then brought against a vandal, the court will need to ask whether it is truly to be considered a place of worship.

The question of knowledge gained outside of confession

Since according to the allegations and the deposition testimony, Fr. Bayhi met with the man accused of sexual abuse, Mr. Charlet, concerning the "obsessive number of emails and phone calls" between him and the girl, there does seem to be a question about whether he had grounds for suspicion outside of what he learned in confession that would have resulted in a mandatory duty to report suspected abuse.

The question of the right to waive the confidentiality of confession

The diocese statement claims: "Church law does not allow either the plaintiff (penitent) or anyone else to waive the seal of confession."

Now, the penitent is not bound to begin with by the seal of confession. In this case the Church did not seek to exclude the penitent's testimony about confession on the grounds that it was forbidden for her to disclose the contents of the confession, but on the grounds that the testimony was irrelevant to the case, as nothing that the priest knew from confession could result in a duty or imply a breach of duty to report suspected abuse.

The issue rather concerns whether the penitent can release the confessor from the seal of confession, so that he can reveal to another person the content of a confession. The issue is not a simple one; St. Thomas Aquinas seems to indicate that the penitent can do so in some way; while there has always been disagreement, the majority of moral theologians and canonists maintain the same; and canon law presupposes it — canon 1757 §3 (2) of the 1917 code excludes priests at ecclesiastical trials from "giving testimony pertaining to matters known to them through confession, even if they have been freed from the obligation of the seal", and canon 1550 § 2 (2) of 1983 code similarly prohibits testimony at ecclesiastical trials "as regards everything which has become known to them by reason of sacramental confession, even if the penitent requests their manifestation". Due to its complexity, I'll take up the issue in a separate post.